SafeWork NSW v Mondiale VGL Pty Ltd

[2022] NSWDC 275

District Court

New South Wales

Medium Neutral Citation:

SafeWork NSW v Mondiale VGL Pty Ltd [2022] NSWDC 275

Hearing dates:

15 July 2022

Date of orders:

21 July 2022

Decision date:

21 July 2022

Jurisdiction:

Criminal

Before:

Russell SC DCJ

Decision:

(1)   Mondiale VGL Pty Ltd was convicted on 15 July 2022.

(2)   The appropriate fine is $500,000 but that will be reduced by 25% to reflect the early plea of guilty.

(3)   Order Mondiale VGL Pty Ltd to pay a fine of $375,000.

(4) Order pursuant to Section 122(2) of the Fines Act 1996 (NSW) that 50% of the fine is to be paid to the prosecutor.

(5)   Order Mondiale VGL Pty Ltd to pay the prosecutor’s costs.

Catchwords:

CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury

SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – general deterrence – specific deterrence – capacity to pay appropriate penalty

COSTS – prosecution costs

OTHER – defendant conducted a business or undertaking involving transport and logistics – worker was driving a reach stacker to load containers onto trucks – truck driver crushed when struck by the reach stacker as it was reversing - failure to enforce exclusion and designated safety zones – failure to instruct and train workers on the location of exclusion and designated safety zones – failure to identify hazards associated with loading containers

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 26, 27, 28, 30A, 30B, 30E

Fines Act 1996 (NSW), ss 6, 122

Work Health and Safety Act 2011 (NSW), ss 3, 19, 32

Work Health and Safety Regulation 2017 (NSW)

Cases Cited:

Baumer v R [1988] HCA 67; (1988) 166 CLR 51

Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338

BW v R [2011] NSWCCA 176

Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610

Mahdi Jahandideh v The Queen [2014] NSWCCA 178

Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120

Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96

R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566

R v Wilkinson (No. 5) [2009] NSWSC 432

Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266

Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465

Texts Cited:

WorkCover NSW Code of Practice: How to Manage Work Health and Safety Risks, December 2011.

SafeWork NSW Code of Practice: Managing the Risks of Plant in the Workplace, August 2019

Category:

Sentence

Parties:

SafeWork NSW (Prosecutor)
Mondiale VGL Pty Ltd (Defendant)

Representation:

Counsel:
M Moir (Prosecutor)
P Barry (Defendant)

Solicitors:
Department of Customer Service (Prosecutor)
Kingston Reid (Defendant)

File Number(s):

2020/312591

Judgment

1. On 29 November 2018 Mr Ian Marlow suffered fatal injuries after being crushed by a reversing reach stacker.

2. Mondiale VGL Pty Ltd (Mondiale) has pleaded guilty to an offence that as a person who had a work health and safety duty pursuant to s 19 of the Work Health and Safety Act 2011 (NSW) (the Act) it failed to comply with that duty and thereby exposed Mr Marlow to a risk of death or serious injury contrary to s 32 of the Act.

3. The maximum penalty for the offence is a fine of $1,500,000.

The Risk

4. The risk described in par 9 of the Summons is as follows:

“The risk was the risk of workers, in particular Mr Marlow, suffering serious injury or death as a result of being struck and/or crushed and/or otherwise coming into contact with a reach stacker at the site.”

Reasonably Practicable Measures

5. Paragraph 10 of the Summons pleads particulars of the defendant’s failure to comply with the duty under s 19(1) of the Act as follows:

“10. The defendant failed to ensure, so far as is reasonably practicable, the health and safety of workers, in particular Mr Marlow, in that it failed to take one or more of the following reasonably practicable measures, to eliminate, or alternatively minimise if it was not reasonably practicable to eliminate, the risk:

a) Enforcing the prohibition against trucks and truck drivers entering the container yard hardstand area (‘container yard’), identified in the Traffic Management Plan (‘TMP’) as a ‘no vehicle access or unauthorised personnel’ zone, through adequate supervision; and/or

b) Implementing clearly delineated and designated safety zone/s for truck drivers to stand in during pinning (‘driver safety zones’), using readily discernible line markings and signage; and/or

c) Instructing and training workers regarding the location of driver safety zones and exclusion zones by specifying in the TMP and accompanying site rules:

i. The location of driver safety zones and exclusion zones;

ii. That the container yard was strictly no unauthorised pedestrian access;

iii. That a truck driver was only permitted to do up pins (i.e. lock containers) within a driver safety zone or in an area designated for pinning; and/or

d) Identifying the hazards associated with a container being loaded by a reach stacker onto a truck in the container yard (including containers being repositioned by a reach stacker and being pinned by a truck driver).”

Background

6. The parties presented an Agreed Statement of Facts and this material is summarised below.

7. Mondiale (known until 5 April 2021 as Visa Global Logistics Pty Ltd) conducted a business or undertaking that involved transport and logistics. Its principal place of business was a site located at Building 1, 1 Coal Pier Road, Banksmeadow NSW 2019 (the site).

8. As at 29 November 2018, Mondiale employed 418 workers, including Mr Marlow.

9. Mr Marlow was 42 years old. He commenced employment with Mondiale in November 2017 as a truck driver. He held a Heavy Vehicle Drivers Licence.

10. The operator of the reach stacker involved in the incident commenced employment with Mondiale on 4 October 2018. He held a National Licence to Perform High Risk Work.

The Task of Loading Containers

11. The yard at the site was a storage and handling facility for shipping containers. Trucks entered the site and were either loaded with containers for delivery to other premises, or had containers unloaded from them.

12. Containers were loaded onto the trailers of trucks by reach stackers.

13. The doors of a shipping container were only at one end. The container had to be positioned on a trailer with its doors at the rear of the trailer.

14. There was a Traffic Management Plan (TMP) that included a map stipulating a one-way directional flow for trucks entering the site and a specific location for loading, namely the runway.

15. The map identified a hardstand location referred to as the “container yard area” which was marked as a “no vehicle access or unauthorised personnel” zone (the container yard).

16. Mondiale’s mandatory induction package instructed workers to respect site exclusion zones, including the container yard as depicted in the TMP map.

17. There was also a Standard Operating Procedure (SOP) relating to loading containers onto trailers at the site. The SOP referred to the need for drivers to be in a designated “safety exclusion zone” during loading, until the reach stacker was clear of the area.

18. The TMP was not always enforced at the site. A number of drivers stated that they had witnessed containers being loaded by a reach stacker onto a truck in the container yard. This included containers being repositioned by a reach stacker and containers being pinned by a truck driver.

19. Truck drivers and reach stacker operators said that this practice had developed when the doors of the container were not facing the correct way, and thus the container had to be repositioned on the trailer.

20. Prior to the incident, some drivers were unaware of the existence of any “designated safety exclusion zone” under the SOP, while other workers and managers expressed differing opinions in relation to the precise whereabouts of the designated safety zone for drivers within the yard.

21. Mondiale’s “Load Dimension and Loading Procedure” also applied at the time of the incident. It provided that “drivers shall keep clear of all reach stacker operations by a minimum of 5m”. This procedure also noted that it was the responsibility of the driver to:

“Always inspect loads and ensure they are safe before departing from a destination. Ensure loads are secure... a container is not properly secured unless the twist locks are used.”

22. Mondiale undertook transport inspections on 6, 13 and 20 November 2018 which on each occasion recorded that:

1. Drivers waited until they were loaded before locking their twist locks and that they were not in the reach stacker danger zone when doing so.

2. Reach stacker operators stopped work if a pedestrian entered the exclusion zone or was in close proximity to the plant.

23. An inspection occurred on 27 October 2018 and again on 27 November 2018, two days prior to the incident. On both occasions it was reported that exclusion zones and driver safety zones were clearly marked.

The Incident

24. On 29 November 2018 at 2.14pm Mr Marlow and the operator of the reach stacker were working in the yard at the site. The reach stacker weighed over 70 tonnes.

25. Mr Marlow arrived at the runway and was approached by the reach stacker carrying the container. The doors of the container were facing the wrong direction (ie they were facing towards the truck cabin).

26. Mr Marlow used a hand signal to indicate to the operator of the reach stacker to move the container around so that the doors were facing the correct direction. The operator of the reach stacker and Mr Marlow then moved both their vehicles to the container yard.

27. The operator of the reach stacker reversed the reach stacker into the container yard to allow enough room to reapproach and lower the container onto the trailer with the doors facing the correct way (ie at the back of the trailer). The operator of the reach stacker then drove away to pick up and move another container.

28. Prior to exiting the site, Mr Marlow was required to ensure twist locks or “pins” locked the container into place prior to travelling on the road.

29. Mr Marlow was standing at the rear of the trailer when he was struck and crushed by the reach stacker, which was reversing while carrying another container.

30. The mirrors and windows fitted to the reach stacker provided its operator with a view of the area directly behind the stacker as it reversed. However, the operator of the reach stacker was looking forward as he reversed, concentrating on another truck on the runway and the container suspended above the ground on the reach stacker.

31. The operator of the reach stacker thought that Mr Marlow had exited the area to twist the pins near the exit gate of the site.

Injuries

32. Mr Marlow suffered fatal injuries as a result of the incident.

Guidance Material

WorkCover NSW Code of Practice: How to Manage Work Health and Safety Risks dated December 2011 (WHS CoP)

33. Prior to and at the time of the incident the WHS CoP was published and available. The WHS CoP provided practical guidance for persons who have duties under the Act and the Work Health and Safety Regulation 2017 (NSW) (the Regulation).

34. The WHS CoP identified a four-step risk management process, which included:

1. Identifying hazards that could cause harm.

2. Assessing the nature of harm that could be caused by the hazard, how serious the harm could be, and the likelihood of it happening.

3. Implementing the most effective control measure that is reasonably practicable in the circumstances.

4. Reviewing control measures to ensure they are working as planned.

SafeWork NSW Code of Practice: Managing the Risks of Plant in the Workplace dated August 2019 (Plant CoP)

35. Prior to and at the time of the incident the Plant CoP was published and available.

36. The Plant CoP provided:

1. That a person conducting a business or undertaking (PCBU) must provide workers, and other persons who are to use plant, with information, training, instruction or supervision that is necessary to protect them from risks arising from the use of plant.

2. That a PCBU’s management must take action to correct any unsafe work practices associated with plant as soon as possible, otherwise workers may think that unsafe work practices are acceptable.

3. A hazard checklist template to be used by a PCBU in managing risks associated with plant.

Systems of Work Prior to the Incident

37. Prior to the incident Mondiale had not identified the hazards associated with a container being loaded by a reach stacker onto a truck in the container yard (including containers being repositioned by a reach stacker or being pinned by a truck driver).

38. Mondiale did not maintain the line marking in the yard in good condition. The line marking was not readily discernible.

39. Mondiale did not enforce the prohibition against trucks and drivers entering the “no vehicle access or unauthorised personnel” container yard used by the reach stackers.

40. There was no designated safety exclusion zone for truck drivers. Nor was there instruction and training requiring truck drivers to stand in an exclusion zone at all times during loading.

Systems of Work Following the Incident

41. Following the incident, Mondiale:

1. Revised and improved its TMP, with the assistance of an external consultant.

2. Implemented and enforced a specifically marked driver safety zone at the yard. Drivers were trained and instructed to stand in the zone and remain in this zone during loading.

3. More clearly defined the container yard as an exclusion zone, through improved signage and newly painted line markings.

4. Updated the TMP to include a number of site rules, which included:

1. a strict prohibition on pedestrian access to the container yard area; and

2. a rule that the post-loading pinning was to be performed at the site exit gate.

Evidence for the Defendant

42. Mr Michael John Verheyen swore an affidavit on 1 July 2022 (DX 1). Mr Verheyen is the General Manager of Health and Safety at Mondiale.

43. Mr Verheyen has been employed by Mondiale since December 2021. He holds Level Four Certificates in workplace health and safety, training and assessment and frontline business management and a Graduate Diploma in Occupational Health, Safety and Environment from the University of Western Sydney.

Mondiale

44. Visa Global Logistics Pty Ltd was founded in 1982.

45. In March 2021, Visa Global Logistics merged with Mondiale Freight Services Ltd and became Mondiale VGL Pty Ltd.

46. Mondiale employs approximately 600 people in its Australian operation. The Banksmeadow premises has 225 workers.

47. The main services that Mondiale provide are:

1. Freight forwarding.

2. Customs clearance.

3. Storage.

4. Warehousing operations.

5. Container transport operations.

6. Advisory services.

Systems of Work Prior to the Incident

48. Prior to the incident Mondiale had an Occupational Health and Safety Manual (the Manual) which included the following:

1. Occupational Health and Safety Policy.

2. Traffic Management Policy and Procedure.

3. Hazard and Risk Policy and Procedure.

49. The Manual was supported by a Code of Conduct, which required compliance with Mondiale’s safety-related directions, the taking of reasonable care for team members’ safety, team member training, a site overview diagram and an induction package.

50. Mondiale also had a Standard Operating Procedure for the operation of reach stackers and a Load Dimension and Loading Procedure, which covered the task of container loading.

51. Mondiale had a system of transport inspections. The system required an inspector to verify, amongst other things, that drivers were not in danger from reach stackers when they were locking the twist locks on containers that had been placed on their trucks and to ensure that reach stacker operators stopped work when pedestrians were near operating plant.

52. Mr Verheyen produced at pp 249 to 254 of Exhibit MJV-01 to his affidavit a copy of the inspection records for the inspections that took place on 27 October 2018 and 27 November 2018, each of which verified that exclusion zones and driver safety zones were clearly marked.

Steps Taken After the Incident

53. Mr Verheyan outlined in pars [35] to [68] of DX 1 the steps that Mondiale has taken since the incident to improve its safety management systems.

54. Among other things, Mondiale has:

1. Employed Mr Verheyan as the General Manager of Health and Safety.

2. Updated the Health and Safety Policy.

3. Re-painted the markings in the yard that direct unauthorised persons to not enter the container hardstand area.

4. Purchased a line-making machine for $9,207.

5. Engaged a traffic management expert to assist in updating its TMP. The TMP designates the container yard hardstand area as a “no unauthorised entry” zone and includes a 10 metre exclusion rule around reach stackers and reach stacker loads.

6. Re-inducted drivers in relation to the Traffic Management Plan.

7. Placed signs to enforce the prohibition of unauthorised entry to the container yard hardstand area.

8. Introduced Monthly Safety Leadership team meetings.

9. Introduced the Driving Life Rules which focus on risks inherent in Mondiale’s work.

10. Developed the OneTrack software package. OneTrack-enabled tablets have been installed in all Mondiale trucks. All drivers and reach stacker operators must sign in before commencing their shift. The software sends safety messages and safety requirements to truck drivers. This includes providing information on toolbox talks, promoting Driving Life Rules and prompting drivers to take rest breaks.

11. Installed hard barriers to separate pedestrians and plant around the warehouse pathways.

12. Provided incentives for positive safety contributions made by staff.

Good Corporate Citizenship

55. Mr Verheyan outlined in pars [69] to [76] of DX 1 the contributions Mondiale has made to the community and various charities.

56. As well as making financial contributions, Mondiale has:

1. Prepared care packs for indigenous children through Gunawirra, a not-for-profit charity in New South Wales.

2. Partnered with Bikes 4 Life to collect, pack and send over 6,000 bicycles to developing countries, remote indigenous communities and asylum seekers.

3. Provided transport after natural disasters.

4. Conducted a drive to donate goods to persons affected by the 2022 Lismore floods.

Remorse

57. Mr Verheyan stated that Mondiale is sorry for the role that it played in relation to Mr Marlow’s death. Mondiale acknowledges that its safety systems should have more adequately addressed the risk of a worker being struck by a reach stacker.

58. After the incident Mondiale provided financial support to Mr Marlow’s family. Mondiale has held memorials on the anniversary of Mr Marlow’s death for the past two years and has introduced the “Ian Marlow Award” for driver achievement.

Consideration

59. I have had regard to the objects in s 3 of the Act and the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW).

Objective Seriousness of the Offence

60. The proportionality principle requires that a sentence should neither exceed nor be less than the gravity of the crime having regard to the objective circumstances: Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465 at 472, 485-6, 490-1 and 496. At common law, the term “objective circumstances” was used to describe the circumstances of the crime. The gravity of the offence was assessed by reference to its objective seriousness: R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566 at [15].

61. The task requires the court to consider where in the range of conduct covered by the offence the conduct of the offender falls: Baumer v R [1988] HCA 67; (1988) 166 CLR 51 at 57. This assessment will generally indicate the appropriate range of sentences available which will reflect the objective seriousness of the offence committed, and set the limits within which a sentence proportional to the criminality of the offender will lie: BW v R [2011] NSWCCA 176 at [70].

60. In Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at [27] the High Court said:

“The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending.”

63. The sentencing judge should take into account not only the conduct which actually constitutes the crime, but also such of the surrounding circumstances as are directly related to that crime and are properly regarded as circumstances of aggravation or mitigation: R v Wilkinson(No. 5) [2009] NSWSC 432 at [61].

64. The existence of a reasonably foreseeable risk to safety that is likely to result in serious injury or death is a factor relative to the gravity of the offence: Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 at [82]. The question of foreseeability of the risk is to be determined objectively.

65. The court must identify all the factors that are relevant to the sentence, discuss their significance and then make a value judgment as to what is the appropriate sentence given all the factors of the case: Muldrock. This approach to sentencing, known as the “instinctive synthesis” approach, involves the making of a global judgment without any attempt to state precisely how any given factor has influenced the judgment.

66. The Court of Criminal Appeal has examined the sentencing process with regard to the Act in the matter of Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96. Justice Basten at [34], under the heading “Assessment of Risk” said:

“The sentencing judge commenced his consideration with the proposition that ‘greater culpability attaches to the failure to guard against an event the occurrence of which is probable rather than an event the occurrence of which is extremely unlikely’. However the truth of that proposition depends upon other considerations including (a) the potential consequences of the risk, which may be mild or catastrophic, (b) the availability of steps to lessen, minimise or remove the risk, and (c) whether such steps are complex and burdensome or only mildly inconvenient. Relative culpability depends on assessment of all those factors.”

67. Further at [42] his Honour continued:

“The culpability of the Respondent is not necessarily to be determined by the remoteness of the risk occurring, nor by a step‑by‑step assessment of the various elements. Culpability will turn upon an overall evaluation of various factors, which may pull in different directions. Culpability in this case is reasonably high because, even if the [event] which occurred might not be expected to occur often, the seriousness of the foreseeable resultant harm is extreme and the steps to be taken to avoid it, which were not even assessed, were straightforward and involved only minor inconvenience and little, if any, costs.”

68. At [53] his Honour dealt with the proper approach to considering the objective seriousness of offences under the Act, saying:

“It is important to note that the risk to be assessed is not the risk of the consequence, to the extent that a worker is in fact injured, but is the risk arising from the failure to take reasonably practicable steps to avoid the injury occurring. To discount the seriousness of the risk by reference to the unlikelihood of injury resulting is apt to lead to error. The conduct in question is the failure to respond to a risk of injury, conduct which will be more serious, the more serious the potential injuries, whether or not they are likely to materialize. The objective seriousness of the conduct will also be affected by the ease with which mitigating steps could have been taken.”

69. My findings about the defendant’s level of culpability are based upon the following:

1. Mondiale knew of the risk. In any event the risk was obvious and highly foreseeable as there was guidance material directed to this particular risk.

2. The likelihood of the risk occurring was high. There were many movements of heavy vehicles at the site. Every time a truck came onto the site to be loaded with a container, there was proximity between the truck and the stacker. Every container had to be pinned manually to the trailer of the truck, which involved the driver being out of the truck and potentially being close to the reach stacker, as happened in the present incident. The evidence shows that the occasional presence of workers and heavy machinery being in the same area had developed over time but had not been noticed or prohibited. I reject the submission of counsel for Mondiale that the likelihood of the risk eventuating was low.

3. The potential consequences of the risk were death or serious injury.

4. Simple and well-known steps were readily available to eliminate or minimise the risk.

5. There was no great burden or inconvenience in these steps being implemented.

6. Mr Marlow suffered fatal injuries.

7. The maximum penalty for the offence is a fine of $1,500,000, which reflects the legislature’s view of the seriousness of the offence.

8. Unlike some other cases, Mondiale did have a written safety system and had provided training in that system. However, if Mondiale had been aware that its procedures were not being followed on some occasions, and had enforced its own safe work procedures, Mr Marlow would not have been in the container yard where the incident occurred.

70. I find that the level of culpability of Mondiale is in the mid range.

Deterrence

71. The penalty imposed in relation to this offence must provide for general deterrence. Employers must take the obligations imposed by the Act very seriously. The community is entitled to expect that both small and large employers will comply with safety requirements. General deterrence is a significant factor when safety obligations are breached: Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338 at [180].

72. The penalty must reflect the need for specific deterrence. Mondiale is still conducting a business. Its operations involve transport and logistics and the continuing engagement of workers.

Aggravating Factors

73. The injury, emotional harm, loss or damage caused by the offence was substantial: s 21A(2)(g) Crimes (Sentencing Procedure) Act 1999.

Mitigating Factors

74. Mondiale has no prior record of conviction: s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999. Mondiale has been in business for 40 years. That is an excellent record in a potentially dangerous heavy industry. That record will result in a lower penalty than I would otherwise impose.

75. Mondiale is otherwise of good character: s 21A(3)(f) Crimes (Sentencing Procedure) Act 1999. The steps which it took after the incident demonstrate this.

76. Mondiale is unlikely to re-offend: s 21A(3)(g) Crimes (Sentencing Procedure) Act 1999.

77. Mondiale has good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. It has taken positive steps to guard against the risk of an incident such as this ever happening again. It has brought its documentation and its procedures into line with those which, on all the evidence, should have been in place before this accident occurred. The video (exhibited to DX 1) showing the new system for loading and pinning containers clearly demonstrates this.

78. Mondiale has shown remorse for the offence: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. It has provided evidence that it has accepted responsibility for its actions and has acknowledged that the injury to Mr Marlow was caused by its actions. Personal expressions of remorse are also part of the video.

79. Mondiale entered a plea of guilty: s 21A(3)(k) Crimes (Sentencing Procedure) Act 1999. The court must take into account the fact that the offender has pleaded guilty, when the offender pleaded guilty, and the circumstances in which the offender indicated an intention to plead guilty: s 22(1) Crimes (Sentencing Procedure) Act 1999. It is appropriate to give Mondiale a 25% discount for an early plea.

80. Mondiale gave assistance to law enforcement authorities: s 21A(3)(m) Crimes (Sentencing Procedure) Act 1999. It co-operated at all times with the prosecutor and provided all documents requested in a prompt fashion.

Capacity to Pay a Fine

81. I am required to have regard to s 6 of the Fines Act 1996 (NSW) before imposing a fine. Where an offender seeks to have a fine reduced on the basis of a limited capacity to pay, it bears the evidentiary onus of convincing the court that it should exercise its discretion to limit the amount of the fine. The offender’s capacity to pay is relevant but not decisive: Mahdi Jahandideh v The Queen [2014] NSWCCA 178 at [16]. A substantial fine may still be warranted as a result of the seriousness of the offence and the need for general deterrence.

82. In Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 at [79] the Court of Criminal Appeal said:

“First, and more generally, questions of specific deterrence should take into account the size and scope of the operations of the defendant; a fine which may be crippling to a small business may have virtually no impact on the financial operations of a large corporation. The maximum penalty for the offence is undoubtedly set having regard to such a factor. Secondly, the Court is required to have regard to ‘the means’ of the defendant, pursuant to s 6 of the Fines Act 1996.”

83. There was no submission about capacity to pay, so this issue does not arise.

Victim Impact Statements

84. The defendant was convicted at the sentence hearing on 15 July 2022.

85. Part 3 Division 2 of the Crimes (Sentencing Procedure) Act 1999 deals with Victim Impact Statements. The provisions apply to an offence being dealt with summarily by the District Court where the offence results in the death of, or actual physical bodily harm to, any person – s 27(2)(a).

86. A Victim Impact Statement may be tendered to the court only by the prosecutor – s 30A(2). A court must accept a Victim Impact Statement tendered by a prosecutor if the statement complies with the requirements of the Division – s 30B.

87. A court to which a Victim Impact Statement has been tendered must consider the statement at any time after it convicts but before it sentences, and may make any comment on the statement that the court considers appropriate – s 30E(1).

88. By s 28(2) a family victim in relation to an offence may prepare a Victim Impact Statement that contains particulars of the impact of the primary victim’s death on the family victim or other members of the primary victim’s immediate family. Members of a primary victim’s immediate family include children of the deceased – s 26.

89. A Victim Impact Statement of a family victim may also be taken into account by the court in connection with the determination of punishment for the offence, on the basis that the harmful impact of a primary victim’s death on family victims is an aspect of harm done to the community – s 30E(3). Such statements can only be taken into account on punishment if the prosecutor applies for this to occur, and the court considers it to be appropriate. In the present instance the prosecutor applied for this to occur and I determine that it is appropriate to take the statements into account.

90. The court received written Victim Impact Statements from Mrs Kylie Marlow (PX 2), the widow of the late Mr Marlow, and from his daughter Ms Josie Marlow (PX 3).

91. The late Mr Marlow had two daughters from his first marriage and two young sons from his second marriage to Mrs Kylie Marlow. To obtain family support in raising her two young boys Mrs Marlow has moved to Queensland. She and the two boys have missed the two girls very much. Mrs Marlow has great difficulty sleeping, and the two boys are so insecure that they sleep in the same bed as her. Mrs Marlow feels upset that the two boys will grow up not knowing the love and warmth that they had from their late father. Mrs Marlow had a life of love and joy before she lost her husband. She describes now having feelings of darkness and dullness. Mrs Marlow strives to demonstrate strength and resilience to her children. The two boys miss their life in Sydney and miss their sisters. Mrs Marlow finds it hard to relate to most people now and has difficulty in keeping or forming friendships. Mrs Marlow earns less in Queensland than she did in Sydney, but has the same level of expenses. In her Victim Impact Statement Mrs Marlow described Mr Marlow as a truly exceptional man who is missed beyond belief.

92. Ms Josie Marlow describes herself as now more angry, fearful and anxious. She feels like she is living in a haze. She still has nightmares and episodes of extreme sadness. Every time there is a major event in her life, such as turning 18, turning 21, obtaining her first job or graduating from university, she feels sadness because her father cannot share that moment. Ms Marlow said that she has lost a lot of friends and struggles to make connections with new people. She feels like she has missed out on her late teenage years because she was grieving. Ms Marlow has tried to maintain the relationship with her stepmother and two brothers, but now she can see them only every two to three months. Ms Marlow is on track to become a physiotherapist, but feels that her ability to work in a team in employment and in university has been affected. She feels sad for every family who has experienced grief from losing a father.

93. I take both Victim Impact Statements into account on the basis that the harmful impact of the death of Mr Marlow on members of his family is an aspect of harm done to the community.

Costs

94. The parties have agreed to an order that the defendant is to pay the prosecutor’s costs.

Penalty

95. My orders are:

1. Mondiale VGL Pty Ltd was convicted on 15 July 2022.

2. The appropriate fine is $500,000 but that will be reduced by 25% to reflect the early plea of guilty.

3. Order Mondiale VGL Pty Ltd to pay a fine of $375,000.

4. Order pursuant to Section 122(2) of the Fines Act 1996 (NSW) that 50% of the fine is to be paid to the prosecutor.

5. Order Mondiale VGL Pty Ltd to pay the prosecutor’s costs.

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Decision last updated: 21 July 2022